Articles Posted in Debt Defense

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On or about March 13, 2009, our client, Mr. Julian Garvin, was called to active duty by the United States Army for one year, to begin on March 22, 2009. On March 26, 2009, he informed his mortgage servicer, JPMorgan Chase Bank, N.A., that he had been called to serve. Mr. Garvin provided a copy of his deployment order and asked them to reduce his interest rate, as required by federal law. No such adjustments were made. While on active duty, and for 11 months after his return, Mr. Garvin continued to make his full monthly payments. Then, at the peak of the crisis, he was unable to continue to pay.

On November 14, 2012, ALS-RVC, LLC, the entity claiming the right to foreclose, filed suit. The case went to trial and was involuntary dismissed, in part, because of ALS-RVC’s failure to adjust the interest rate as required by the Servicemember Civil Relief Act (SCRA). 50 U.S.C.A §3937. ALS-RVC appeals. In their Initial brief they concede the SCRA “applies to this situation, and [Mr. Garvin’s] loan payments should have been credited with a reduced interest rate during his active duty…” They also concede that “Subsection (e) of 527 is entitled ‘Penalty’ and reads, ‘Whoever knowingly violates subsection (a) shall be fined as provided in title 18, United States Code, imprisoned for not more than one year, or both.’ 50 U.S.C.A § 3937(e).” Yet, rather than trying to make amends for their admitted, jailable offense committed against a member of the United States Army, the bank and their lawyers appeal.

In the 80s, we were introduced to the phrase “trickle down economics.” From what I see in this and so many other cases, the only thing trickling down from Wall Street is fraud, greed, arrogance and a complete disregard for the rule of law.

Today, we had our 2013 holiday office party.  After working in the morning, the best supporting cast in the business and I took some time off to share a meal and unwind a bit.  After eating at the Yard House in Gulfstream Park, we drove over to Holiday Bowling Lanes and bowled a couple games.

It is a yearly tradition that I share some thoughts via a poem.  Just after our drinks arrived, I read the following to everyone:

Welcome to the 2013 holiday party!

The first trial for this case was scheduled in Miami-Dade for January 2013.  I had spent days and nights preparing, refreshing my memory on all the details such as the payment history, acceleration letter, the note and mortgage, mortgage servicer correspondence, court filings, discovery, rules of evidence, procedure and much more.  As I usually do, I ran background checks on the bank’s witness.  I reviewed all the mortgage servicing processes from this particular bank as covered in various other court documents we have on file.  I felt prepared. I was ready.

Our client had a Fannie Mae loan, serviced by one of the biggest banks. The file contained the usual hoof prints of suspicious documents.  It was handled by a foreclosure mill, which was one of many under investigation by the Attorney General’s office.  Unfortunately, this is not unusual…

I woke up the morning of trial raring to go.  I was prepared, calm and pumped with a bit of adrenaline.  Litigators and athletes will understand the letdown I felt when the trial did not go forward.  Their witness did not show and the court ordered a continuance until April 4th.

It’s been a few days now since the oral argument was completed in an appeal of one of our foreclosure cases.  Legal issues are rarely cut and dry and while this case seemed to be, it invariably was not.  Months and months of preparation boiled down into 16 minutes of argument and as the buzz from the excitement wears off, I can begin to get a clearer picture of how I feel about this one.

Of course, initially, my mind repeated an internal loop of things I could have said or done differently. Mentioning the Boultbee case which stands for the proposition that a denial along with raising the specific statute, similar to the specific paragraph in the mortgage, in an affirmative defense, without more, is enough to adequately deny the general allegation that conditions precedent have been met to shift the burden back to the Plaintiff to prove that element of their case, is one example.  We did cite that case in our brief but this point is in a footnote.  I sure hope the Judges see that.  There were others but that was the one that bothered me most. This may or may not have made a difference and second guessing your performance as a lawyer is part of the job.  However, overall, I knew the law and was proud of the way things went.  I received a number of calls and emails from trial and appellate lawyers whom I respect and admire and the feedback was positive.  Especially since appellate law sets precedent, this was reassuring. As much as my focus is on serving my clients, I know that many others can be affected by this ruling.

Taking a further step back, I can’t help but wonder whether or not this case would have even needed to be appealed if it were not a foreclosure case.  A few years ago, just before the foreclosure crisis, I was in the middle of a 5-day jury trial.  In the case, like in almost all others, the Judge was called upon to rule as to whether or not a document could be admitted into evidence for the jury to consider in its deliberations.  It was a small, one of many, physical therapy bill.  Rather than seek someone from the physical therapist’s office to admit the bill in a case that involved major surgeries, we sought to admit it through the testimony of a doctor.  The doctor knew the bill was fair and accurate, and even knew that the services were ordered, reasonable, and necessary.  However, as required by Florida Statutes 90.803(6), he could not testify as to when the bill was made, how it was made, how it was kept, and whether or not it was made by a person with knowledge. We had admitted similar evidence in other cases usually by agreement but this opposing lawyer would not stipulate.  Because the doctor couldn’t truthfully testify to the issues or “prongs” required by 90.803(6), the judge properly excluded the bill from coming into evidence.  We had our client later testify based on her personal knowledge as to the amount of that bill so no harm was done.

A 101% Principle Reduction!

After a little over a year in litigation, we are proud to announce that we have been successful in helping yet another client obtain a principal reduction. While they are rare, they most certainly can and do happen!

Our client came to us with a simple goal, a fair and sustainable loan modification. The property in this particular case, according to the county property appraiser, is currently valued at approximately $38,000.  Unfortunately, like most of the deeply underwater homes in Florida, the outstanding balance of the loan @ $197,000 was substantially higher than the value of the property.  During the course of litigation in this case, we put the Plaintiff to task to prove their case.  We regularly work 12-14 hour days, 6-7 days per week uncovering foreclosures that are more often than not, chocked full of questionable, suspicious, or outright fabricated documents.

For the fourth year in a row, elected lawmakers in the Florida legislature have introduced a bill designed to bypass your constitutional rights and speed up the process of taking people’s property away and throwing them into the street.  This bill is given a tricky name meant to fool people into thinking it is good for Floridians.  The “Fair Foreclosure Act”, House Bill 87, has been introduced into the Florida House of Representatives by Representative Kathleen Passidomo (R-Naples). We call it the “UNfair Foreclosure Act” to more accurately portray the intention and goals of the bill.  This is the third year Rep. Passidomo has introduced her bill.  She just won’t give up.  She believes that faster foreclosures that kick more Floridian families out of their homes will speed up the recovery of Florida economy. This bill will have a twin in the Florida Senate, to be introduced by Senator Jack Latvala (R-Clearwater).

What will change if this bill passes?  The law will affect every single pending foreclosure case in the state because it is retroactive.  The banks only need to submit certain documents and then it is up to the homeowner to prove there are issues of fact.  However, the judge can ignore the owner’s issues and enter a ruling anyway!  The traditional rule of law, where a person who sues another must prove their case by “the greater weight of the evidence” will be dead for foreclosure cases.  Banks can take your home away, quickly and easily…  They can continue to fabricate documents as they have been caught doing countless times, file them in court, and then the homeowner has only 20 days to raise doubt, which again, the judge can ignore!  The homeowner is not allowed to take time to ask for bank records or payment history to help prove bank misconduct or a wrongful foreclosure.  Lastly, if a house is wrongfully foreclosed, in certain circumstances a homeowner cannot sue to get their house back!  Even the Godfather of Florida’s civil procedure (court rules), Henry Trawick, one of the state’s most respected lawyers, has come out in opposition to this bill!

Over the next month, the bills will move through committees in the Florida House and the Florida Senate where our elected representatives will vote on the bills.  If the “YES” votes outnumber the “NO” votes in each committee, then the bills will go to a floor vote in both chambers of the Florida legislature (the Florida House of Representatives and the Florida Senate).  If those “YES” votes outnumber the “NO” votes in both chambers and the Governor signs off, the bill becomes a law.

HB 87: Henry Trawick, the Godfather of Civil Procedure and the Rule of Law Speaks…

“The enactment of §702.015 is useless, unnecessary and will not expedite the foreclosure process. It gives inadequate remedies to persons who may be seriously injured. It does not give any consideration to existing law on several points. The real problem faced in the foreclosure crisis has been the unwillingness of trial courts to insist on plaintiffs properly preparing the pleadings under existing law, enforcing existing law on the standing of plaintiffs; the refusal of appellate courts to properly enforce existing law on standing in foreclosures; and the unwillingness of banks to promptly push foreclosures to judgment to avoid paying real property taxes, condominium assessments and maintenance for the foreclosed property.”

Copy of the letter below…

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